Originally Published by W&P Legal (www.wplegal.co.uk)
We acted as an advocate for a family at an NHS Continuing Healthcare assessment recently. We won and our client’s care will now be fully funded by the NHS.
The meeting was a tough one but not untypical.
What was striking was the arrogance of the NHS assessor. He was a young man with an even younger trainee in tow, and he was flexing (We believe that is the current term for showing off). As he went through the domains, disparaging the carers, writing off quite complex care as routine, making assumptions that P’s 85 year old husband could easily cope with her day-to-day needs. It was shocking. Unfortunately for him, he met our most experienced advocate. He schooled him on the Mental Capacity Act when the assessor assumed that P had capacity when she told him that everything was OK and she was just getting by (she didn’t). We took him through the literal meaning of the words in the domains and reminded him that he had to go by what they said and not his interpretation of what he thought they said or what he thought they meant. We put him right when he lied to the family and told them it didn’t matter what levels of needs he put in the domains. Moderate, High or Severe had no consequence according to him.
We saved the family £75k a year, without us they would still be paying, still be struggling to fund P’s care.
This was in stark contrast to a client who approached us for help, having thought he could go it alone, that the rules didn’t apply to him
It is a terribly sad case of an estate where the main beneficiary is a severely disabled and very vulnerable young man. His mother was his main carer and she died with a Will that leaves everything to him via a disabled person’s trust. Mum was also his court-appointed deputy. His birth father was estranged. His stepfather and a friend of Mum are both the executors and trustees of the estate.
We discovered there was a caveat in place on the estate – from his birth father. We contacted him and he said he needs all the money to look after his son. We explained that things didn’t work like that, told him to get independent legal advice (he had none and was working off what Google told him to do). He said he didn’t need any legal advice as he had got Lasting Power of Attorney over his son. This should not have been possible as the child has no capacity and has never and will never have capacity He bought it in. A freshly registered LPA for Property and Financial Affairs (he only wants the money). When we enquired how he got it, he said that it was really easy, he just went online and filled in the forms.
Now clearly, this was in breach of the rules and we duly reported him to the Office of The Public Guardian Safeguarding Team.
We advised him to take independent legal advice, but he dismissed it as too expensive, and unnecessary.
A couple of weeks later he got in touch again. As a result of his child’s change in circumstances, the NHS had asked for a rerun of the Continuing Healthcare Assessment. The child had been fully funded by the NHS for years, but the change in circumstances meant a review was in order – fair enough. Again the father chose to take no advice and represented his son, presenting the power of attorney to the assessor.
The result. Continuing Healthcare funding denied. The reason the child’s needs in the cognition domain had fallen from severe to moderate as he had been able to grant power of attorney to his father.
The unintended consequence of trying to game the system was a loss of £13,000 a month in NHS funding.
This is an extreme case and we are going to help the father appeal the decision, for the son’s sake if nothing else.
But it really highlights the value of professional advice when dealing with vulnerable adults and continuing healthcare.
The figures for these hugely important assessments are stark – 85% of people fail to get funded. 90% plus have no representation at their assessment and take no advice in advance of it. Perhaps believing that the NHS has P’s best interests at heart, rather than their budgets. But when people take the right advice the figures switch around 85% of our represented and advised clients win. Perhaps because professionals can’t be manipulated in the same way that unprepared families can. Call us cynical but it’s a game, and if you know the rules, know who is on your side and you know what a win looks like, then you have a really good chance of winning. If you don’t you have lost before you have started. We don’t do these often and we turn away many clients who ask us to assist as their loved ones simply aren’t ill enough, or their problems don’t fit the domains. But when we represent a family the figures suggest that we will win (11 out of the last 12).
How many more are paying where they shouldn’t be? Professional help in this area can be seen as expensive, and the raw data suggests that P’s chances of success are low. But if you change the optics and look at professional advice as an investment in P’s future care and then you look at the success rates for advised clients you might just change your mind.